In filing a medical malpractice lawsuit in Naples, proof will require the unwavering and convincing testimony of an expert witness who will help you establish that:
- The medical staff responsible for your care were negligent;
- That negligence resulted in an injury to you;
- That injury sustained entitles you to receive damages.
In order to be considered an “expert” witness in a medical malpractice case, it’s not enough that someone holds a doctorate degree. In fact, the state of Florida lays forth very specific criteria for who may testify in medical malpractice case.
In fact, it’s been quite a contentious issue here, with the Florida Supreme Court in December refusing to adopt a part of state law that creates restrictions on which doctors can testify during medical malpractice trials. As the Insurance Journal recently reported, the law, designed to help doctors better defend themselves in malpractice cases, would limit expert witnesses called to testify against physician defendants to only those individuals who practice the exact same kinds of medicine as the defendant. The law barred those in similar fields from acting as expert witnesses. The Florida Supreme Court determined this would have a chilling effect on the ability of people to find witnesses in Florida medical malpractice cases. In fact, the Florida Bar Board of Governor’s voted 34-5 to recommend the court reject the law, calling it unconstitutional.
But don’t expect that to be the end of this issue. Both sides disagree about what that state supreme court ruling meant. The attorney for the Florida Medical Association was quoted as saying that “the law still stands,” with the court simply declining to accept it as a matter of procedural rule. Meanwhile, the Florida Justice Association president was quoted as saying that it was clear the court had called the law unconstitutional.
While the full impact of that ruling continues to be parsed, it becomes all the more critical for your attorney to carefully choose expert witnesses. Florida Statute 766.102 spells out the appropriate guidelines.
It’s worth noting, however, that expert witness testimony can enter the record in a number of ways. First, there are depositions, which are basically sworn interviews conducted by both sides prior to the trial. Then there is actual testimony given by the doctor at trial. And finally, medical records by treating physicians.
In the recent case of Milliun v. New Milford Hospital, reviewed by the Connecticut Supreme Court, the trial court granted a summary judgment in favor of the defendant doctor after refusing to allow certain medical records, provided by the plaintiff’s treating physicians, to serve as expert opinion regarding causation of her injuries. The appellate court later reversed, a decision upheld by the state supreme court.
The plaintiff reportedly sustained some neurological damage in 2002 after she stopped breathing during a medical procedure. In subsequent medical reports by treating physicians, the doctors noted the patient’s self-reported causation.
The defendant took issue with this, saying the doctors were simply repeating what the patient had told them about how her injuries were caused, and that this did not constitute expert opinion. The trial court agreed.
However, upon reversal, the appellate court noted that the other treating doctors were not basing their opinion of causation solely on what the patient told them, but rather on a combination of that plus her prior medical records and their own assessments. For this reason, the appellate and later state supreme court found it improper that the trial court had withheld these documents from evidence, thereby effectively killing her case.
By reversing the decision, her claim will be allowed to move forward.
For more information about filing a medical malpractice claim in Collier County, contact the Hollander Law Firm at 888-751-7770 for a free and confidential consultation.
Milliun v. New Milford Hospital, Dec. 31, 2013, Connecticut Supreme Court
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